Michelle: Um, are we waiting for Jim or no?
Jesse: No, but the last time I recorded with Jim, he hit his head on the microphone.
Michelle: Oh, that's adorable. That is adorable.
Jesse: All right, let's do this intro, the “This is Committable” bit with, uh, preferably the least amount of physical injury possible.
Michelle: Great
(laughter from Jesse and Michelle)
Michelle: This is Committable.
Jesse: Awesome, and onto the interview.
Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan, and I'm here with Committable producer Michelle Stockman.
Michelle: Hello, I'm Michelle Stockman.
Jesse: In this season of Committable, we're going state by state to better understand mental health laws throughout the US. Because these laws can be ridiculously complicated and it can be really difficult to understand why your rights are being taken away, and what you might be able to do to prevent that, as it's actually happening. And for this episode, we're going to be looking at mental health laws in Alabama. And to better understand those laws, I spoke to James Tucker.
James Tucker: Hello everyone, my name is James Tucker, I'm a lawyer. I am the director of the Alabama Disabilities Advocacy Program, we're part of the law school at the University of Alabama in Tuscaloosa. We provide a broad range of services to people with disabilities, and that includes people with SED or a mental health diagnosis. We are part of a national protection and advocacy network providing legal services to people with disabilities throughout the country.
Jesse: Can you briefly explain what an SED is?
James Tucker: Yes, Serious Emotional Disturbance. So that means that we are providing services to young people who may have an emotional issue that they're struggling with. But as you may know, the professional practice has been to try to avoid labeling young people unless you have more confidence in the ability to make a diagnosis.
Jesse: So I started this conversation by asking about current mental health laws in Alabama but James wanted to first take a step back and talk about a really important federal case that took place in Alabama. Wyatt v Stickney.
James Tucker: In Alabama, we had the Wyatt versus Stickney case, and before the Wyatt case, the law in the United States was that a person who was involuntarily committed did not have a right to treatment after the commit. That case was filed because there were literally thousands of persons involuntarily confined by the state of Alabama without the provision of treatment. That federal court declared in 1971 that it is a constitutional right of persons in the United States that once a person is involuntarily committed, they have a constitutional right to treatment. And that to fail to offer that treatment after an involuntary commitment would be a gross injustice. As seems abundantly clear, but that's been the law of the land now for only the last 50 years.
Jesse: So it was essentially just a form of detention?
James Tucker: That's exactly right, it was an utterly classic form of warehousing and stands in a direct line of succession, if you will, to poor houses and all kinds of institutions for the confinement of persons whom society did not welcome in the hundreds of years before worldwide.
Jesse: Does that change then affect legislation? Has that then affected the wording of the current mental health laws?
James Tucker: Yeah, it hugely affected legislation at both the state and national levels. In fact, Congress wrote a law in the mid seventies that created the funding mechanism that funds my office, and 56 sister organizations in every state and territory in the country. Now, it also had an effect on how local laws, usually state laws, about involuntary civil commitment work. In other words, it created standards. It said there has to be due process, there has to be a reason. The person being accused has to be able to go to a hearing. And that the person has to be able to have access to representation in the courtroom.
Jesse: So it wasn't until the 1970s that the US formally acknowledged that people being involuntarily committed to psychiatric institutions have a right to due process, and that they have a right to treatment. A federal court establishes some basic standards that have to be met in order to justify an involuntary commitment, and my next question for James was, What are those basic standards that mental health laws throughout the US are now required to meet?
James Tucker: Yeah, the basic standard is roughly as follows. I mean, historically throughout the United States and especially in this state, let me give you a classic scenario of what happened and how the absence of law worked to the detriment of persons facing this process. Classically, what happened in Alabama for much of the 20th century, and this is hugely gender-based and race based, so it shows the intersectionality of these rights also. But classically in Alabama you can imagine that up until roughly 1970, if there was a relatively prominent local white man who had tired of his wife, he could go to the local probate court. The probate court usually was not a lawyer, the probate judge was not a lawyer and still isn't in most counties in Alabama. And the probate judge would issue an order to the sheriff to detain, in this scenario, the wife and have that person sent to the state psychiatric hospital.
Some of those persons detained in that fashion were confined to the hospital for more than 50 years and died there in their old age. That was reality in Alabama and for much of the country until 1970 or 71. Then what changed is that a set of standards is created that basically provides the basics of due process. Due process is the constitutional issue here, and basically what that means is that now the process requires that usually a petition is filed in writing that must, on its face, state sufficient grounds, which if true, would warrant an involuntary commitment. But the filing of that petition is not enough, the court has to hold a hearing. The court has to give notice to the person who is the subject of the potential commitment, and that person is entitled to counsel. That person is also entitled to confront the accuser or the petition. Only, if after conducting a hearing that gives due process, only after conducting that kind of a hearing now may a court involuntarily commit a person in this country.
Now there are many points in that process where the process which is due may not be very meaningful, it may not be given in the way that you and I would like. But that's how it's supposed to work in all 50 states.
Michelle: I do wanna highlight a couple issues that I wanna call attention to. I agree, we do need people who are educated on these things, who are aware of these things, who are critically thinking on these things. And we do need these processes. And so I do like when people call attention to, Hey, you need to make sure that there's a hearing in front of an official person of some kind. But how do we decide who's an expert?
How many people are operating in these processes with bad faith?
How many people are bungling them because they don't care? They don't bother to educate themselves. They've somehow managed to find their way into an area of expertise of which they really haven't actually put in the time and attention and thought, or they've put all their thought and time and attention into the academics of it without taking into consideration the humanity of it? And so yes, there's due process, but you can do everything the right way and still get completely screwed over by this system.
And I feel frustrated when we only focus on that first one, where that first one is somehow believed to be the solution. Like, if we just make sure a psychiatrist is in the room, and if we just make sure that they go through this process and this proper hearing process, then it'll be fine to strip them of their rights and institutionalize them for eternity.
Jesse: Yeah, I think that speaks to the conflict between the theoretical intent of the law, the hope of protections that would be offered, and the process as it actually exists. Which is something that James spoke about a little later in the interview.
Okay, so to set this up. In Alabama, as in many states, the commitment process often begins with some sort of detention for evaluation, which can be triggered by a person going into a probate court and applying to have someone else detained for evaluation. So there is the applicant, the person who makes a claim that this other person needs to be detained and evaluated, and there's the subject of that application. The person who, possibly without any notice, is about to be dragged into this system. So if the application gets approved how does this process guarantee that the subject of the application will be able to take part in the hearing? How does this process guarantee that their rights will be protected?
James Tucker: That's where due process starts to break down and you know, we've described how the process works as directed in a statute, and how it is supposed to work, that's not how it always works. In fact, for example, state of Alabama law regarding involuntary commitment says that the subject, to use your term, can waive his or her appearance at the hearing. And all too often the appointed lawyer will waive that appearance for the subject, potentially without the subject's permission. So that the process is still fraught, in individual cases, with the genuine delivery of all the due process protections.
There's one other thing that I wanna say, and I would imagine that you and I share an interest. We would hope that our public mental health systems across the country are able to provide diversionary and support services on the front end without our ever getting to the point where a subject faces possible commitment. What we're talking about is an end of the line when everything else, every other kind of support, has failed. Or, again, that's how we would hope that these systems would function. And I just wanna note the importance of diversion efforts.
Jesse: So in that situation, there's a court appointed attorney who may or may not have an overwhelming number of cases that they have to deal with, and they're faced with the decision of, Do I waive my client's rights to be at this hearing? Or do I have the police sent to pick them up?
James Tucker: I think the trick for the lawyers is that often you've got, as you say, a local overwhelmed, publicly paid, in other words less well compensated, lawyer providing a service on an appointed basis. And that lawyer may or may not have expertise in the area, and that lawyer's ability to keep his or her office open may depend on receiving appointments from that probate court.
Jesse: This lawyer, who's being paid by public funds, is trying to work what sounds like the highest number of cases they can in order to make ends meet. So that creates a real complication with trying to give as much time as is needed for each case.
James Tucker: It definitely does. It's a challenge in the way that we fund public legal representation that is very similar to the challenge faced by individuals who serve as public defenders for criminal charges against individuals.
Jesse: Okay, so at this point in the process an application has been filled out and a judge has approved the application as sufficient, so the subject of that application is appointed an attorney. There is a really concerning possibility that the attorney waives their client's right to a hearing without telling the client. But as long as that doesn't happen, then this person should be brought before a judge for a hearing. So my next question for James was, Once the judge makes that decision is it the police who are sent out to apprehend that person and bring them in for the hearing?
James Tucker: Unfortunately, often it is law enforcement, obviously there are more humane ways to do that. And there are programs around the country that are incredibly active in helping to divert individuals, the CAHOOTS program in Oregon that many people are familiar with would be one such example. But yes, often law enforcement is sent to bring the subject to the courthouse.
Jesse: So if a person is at the point where they have been brought to court for a hearing based on an application that someone else filed, what rights do they have there? How does that process work?
James Tucker: They have the right to be heard, but often as you can imagine they may not have a good and close working relationship with the attorney. And the attorney might usually, the reflex is going to be the attorney is going to cooperate and facilitate with the court the commitment. We offer to investigate allegedly unfounded commitments and we find that most of the time there is a legitimate basis for commitments. I think that's because largely there is at least a minimally funded public mental health system that usually is going to have provided some intervention or support before you get to the point of a petition. Petitions can still be abused, but I think that's the exception these days.
Jesse: It sounds like in the majority of cases you've seen in this process, there is actually some type of distress there, there is some type of help that is needed. The real nuance becomes, is this actually a case where involuntary help is needed?
James Tucker: That's exactly right, it's a nuanced matter, and that's partly why I wanted to provide a little bit of background about what the law was like 50 years ago. To illustrate that this practice really has evolved in recent decades to a point now where I think generally you can expect that, and there may be close questions, there may be nuanced issues, but usually there is at least some support now, some rational objective support, if an involuntary commitment is occurring.
Michelle: One of the things that we're not good at acknowledging, or really thinking through, are the limbo states between actions. The court isn't magically open for walk-ins, and so in a lot of these cases when it's uncertain where you are going next in this process you are trapped someplace and being trapped is traumatizing. Being trapped and realizing you can't escape from something, and that you don't have autonomy, temporarily even, and that you also don't have any of these basic things. I mean, anything that gives you comfort, even minimally, might be removed from you.
Jesse: That is something that none of the laws that we have seen so far really account for. Any length of forced detention, no matter how brief, can be traumatic. And if you reach this point in the process you're a person who may have been apprehended by police, involuntarily brought before a judge, and then involuntarily committed to a psychiatric facility. There can be limbo periods between the apprehension and the hearing, or the hearing and the psychiatric facility where you continue to be detained and forced detention is never insignificant.
So if you are forced through this, if you do end up involuntarily detained in a psychiatric facility, What do you do? What options do you have?
James Tucker: As a practical matter there aren't many good options, but one option would be to call an office like mine and to ask us to investigate. We are an outside third party. We are a nonprofit civil rights law firm funded by the federal government to assist persons, in this case who may have a mental health diagnosis. That's our job, which means my duty as a lawyer is to that person who now is a patient. My duty is not to the court, or the doctor, or the hospital that is detaining that person. So that's one option.
Another option would be that many of these facilities are going to have a patient advocate, and one would hope that that employee of the hospital does exercise independence and takes that role seriously. There's an array of other mental health advocates, for example, as a result of the settlement of the Wyatt case that I referred to earlier, there is an office at the State Department of Mental Health, the Office of Advocacy, with more than two dozen full-time employees. So there are options for some kind of review and some kind of assistance if a person seeks that kind of help.
Jesse: One thing that seems to be a common pattern is that once someone has gone through this system it seems that they're much more likely to be brought into it again. I wonder about if you've been involved in any work trying to deal with that process, because the thing that seems really problematic is once this is on your records it can affect how you're viewed by future treatment.
James Tucker: I absolutely agree with what you are saying and yes, you know, if you look purely as a matter of medical literature, once an individual has been committed then that person is at far greater risk of a future commitment than not. And at far greater a risk than a person who does not have such a commitment on his or her record. We've been involved in advocating for the kinds of supports that you were describing to make sure that individuals receive support and transition services so that they can make a smooth return to the community.
One of the things that I really think about in this regard, and I think about it, for example, with regard to a number of institutional challenges that we face. I'll make a really simple analogy, in foster care, you can't think that you're gonna remove a child from his or her family, fix the child, and then return the child to that family. I think the analogy holds here, you know, we need to be able to see individuals in their family systems and in community systems of care. And we really need to step up the ability to provide supports to people in the way that they prefer, so that they are making decisions about their own life.
One of my friends talks about the medicalization, or the overmedicalization of this whole process, as you and I have walked through it. Yeah, courts and doctors have a lot of power and individuals lose power over their own decision making. What we really need to do is find ways to support individuals to gain the supports that they want for themselves.
Jesse: Is there any option to, if you've been released from a commitment, can you appeal that being on your medical records? Is there any process to say, I think that should be removed from my medical records?
James Tucker: You can, but it's difficult and as a lawyer, I've had a handful of people ask me that question, and I've looked at medical records and sometimes advised persons that if you do that, you're actually gonna make life harder for yourself because then it's in your medical record that you challenged this commitment. But there was a court hearing that said you deserve to be committed, so you may be setting...if you have that entered on your medical record and the next doctor that you want to go see requests those records and sees that you contest everything that's in that record, you may have a hard time finding any care services or treatment as you prefer.
Jesse: And so this brings us to the end of the interview where I asked James if there's anything else about the commitment process in Alabama that is important to know.
James Tucker: One thing that we find is that even though the law is in a statute, because of the way that local clerks and courts operate, it can still be a really idiosyncratic system at the local level, that 67 counties in our state. You know, based on my conversations and connections with people throughout the country, I think it's worth noting that it can still be a highly idiosyncratic system everywhere. Depending on the way the local authorities run their court, their petition process, and it also can depend on, if you will, the wide variability in the availability of upfront supports and diversionary options.
So I strongly encourage individuals to find peer supports, to stay connected with friends, and then if you fear that you may be at risk of an involuntary commitment to seek out services and supports that can help you avoid that because they're out there.
Jesse: Yeah, that seems like it would emphasize the importance of local support who knows, not just federal or state, but county and local.
James Tucker: Yeah, you know, they say all politics is local, well all commitments are hyper local.
Jesse: One of the things I appreciated most about this interview was taking a step back to recognize not just how a law is implemented locally, within a state, or a county, or a city, but also looking at the federal cases that are being interpreted by those more local systems. The sort of cultural shifts that are translated into local practice.
Michelle: To me, there's so much about this that puts me on the side of the harm reduction movement. That at the end of the day, you know, the most important thing should be someone's autonomy. And if the best thing right now for me is curling up in a ball in the corner on a floor and crying, any number of these types of scenarios, you know, to me the question should be not, How do we get you out of that? How do we stop that? The question should be, How do we make you do that as safe as possible, and have as much support as possible, to make sure that you know there are alternatives when and if you're ready to be done with that.
Jesse: Yeah, I think you are identifying some of the fundamental tensions that exist in these systems. The complexity of the individual and what that individual needs in a time of distress, and the vast, virtually unchecked authority given to people in institutions that are often incentivized to view the unfamiliar as dangerous. So it is in some ways really sad that it took until the seventies for us to get a case like Wyatt v Stickney that established some protections. But given the tremendous power imbalances in these systems, it is encouraging that the voices of people with lived experience were, eventually, to some degree, considered at all.
Michelle: Yeah, and it did sound like there was a significant ripple from that one case in Alabama that did spread out through multiple states.
Jesse: We're not gonna overturn things with one big splash but over time we might be able to generate enough ripples to change direction.
Michelle: Nailed it.
Jesse: And that is the most optimistic you are ever going to hear me get on this podcast.
(laughter from Michelle)
Jesse: Alright, next time on Committable, we'll be looking at mental health laws in Virginia.
Jesse: Committable is produced by Jim McQuaid, Michelle Stockman, and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.